EFF to US Copyright Office: fix the DRM rules that stop us from fixing our stuff, make fair use, and make IoT gadgets work the way we want

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Section 1201 of the US Digital Millennium Copyright Act (1998) give DRM incredible protections: it's illegal to bypass DRM in products you own, for legal purposes, and merely investigating or revealing defects in products with DRM can land you in jail.

Every three years, the US Copyright Office asks the public to apply for exemptions to this rule, and this year, the Electronic Frontier Foundation has prepared the best-ever slate of exemptions applications. These exemptions will make a real difference for people who own computers, people who fix devices that have computers in them, people who research security problems with computers, and people who make fair use of digital works.

One caveat: although this is the best slate of exemptions EFF could realistically ask for, the DMCA says the Copyright Office can only grant "use" exemptions (the right to do something), not "tools" exemptions (the right to make a tool in order to do something). So if, say, EFF's petition to legalize bypassing DRM to make fair use of copyrighted works is approved, that only empowers each person in the USA to personally figure out how to write a computer program to let them pull a clip out of a DVD or stream, and then to use it. But everyone is still banned from sharing that tool, or helping others to make a tool of their own.

Software
-
enabled devices are ubiquitous in modern life. One consequence of this phenomenon
has been limiting the ability of device owners to repair, diagnose, or modify their property,
thanks in part to restrictions impose
d by Section 1201(a)(1).

As a consequence,
competition
and innovation are
reduced in the markets for repair parts,
alternative software, and peripherals that could interoperate with software
-
enabled devices.
TPMs enforce ignorance over the inner workings
of the device in your life, inhibiting learning as
well as important
investigations into
privacy and safety risks.

Copyright law was never intended to enforce ignorance of a work when you own a copy of that
work. An exemption is necessary to prevent it from doing so.

Jailbreaking describes
practices that allow device users to install or remove software of their choosing. Jailbreaking or
rooting require circumventing access controls imposed by the manufa
cturer that would otherwise
prevent such modification. The Register of Copyrights has recommended, and the Librarian of
Congress has enacted exemptions relating to jailbreaking in three previous triennial rulemaking cycles, beginning in 2010.

[c]omputer programs that enable smartphones and portable all
-
purpose mobile
computing devices to execute lawfully obtained software applications, where
circumvention is accomplished for the sole purpose of enabling interoperability of
such applications with computer programs on the smartphone or device, or to
permit removal of software from the smartphone or device. For
purposes of this
exemption, a “portable all
-
purpose mobile computing device” is a device that is
primarily designed to run a wide variety of programs rather than for consumption
of a particular type of media content, is equipped with an operating system
primarily designed for mobile use, and is intended to be carried or worn by an
individual.

Besides broadening the category of devices subject to the exemption, the 2015 rule also
acknowledged additional reasons to jailbreak computing devices: to
remove
unwanted software,
and to enable timely operating system upgrades and security fixes.

This year, as part of the newly instituted process for renewing previously granted exemptions,
the Acting Register announced that she intends to recommend renewal of
the 2015 jailbreaking
exemption for the 2018
-
2021 period.

The renewal and expansion of these exemptions reflects how the family of personal computing
devices containing firmware access controls has evolved and become part of everyday life, along
with the
corresponding need to circumvent those access controls in order to adapt those devices
to make them more efficient and effective.

As repeat players in these proceedings, particularly with respect to video excerpt exemptions,
EFF, NMR, and OTW notice that a pattern has emerged: a set of proponents submit ideas for
exemptions to cover a variety of practical, socially valuable and other
wise lawful activities, a
coalition of entertainment entities object
–
insisting, without evidence, that the proposed
exemption might harm the continued growth of video markets
–
and then, eventually, the
Librarian adopts a set of exemptions that recognize
the need for an exemption, but are
nonetheless both narrow in concept and often confusing in practice for users and copyright
holders alike.

The proposed exemption gives the Copyright Office and the Librarian an opportunity to rethink
this unnecessarily
complicated approach. With respect to video excerpts in particular, a more
streamlined approach will bring us closer to Congress’ intent, while making the rules clearer for
both users and copyright holders. The proposed class will provide one clear exempt
ion for video
excerpts
–
removing confusion while maintaining critical protections for educators, libraries,
professional filmmakers (including documentarians), remix artists, and others

HDMI is a standard for video transport from one device to another. The signals are often
encrypted using a version of HDCP. HDCP interferes with creative, noninfringing uses of the
video being conveyed over HDMI, preventing remix, time
-
shifting, space
-
shifting, format
-
shifting, overlay of original imagery over a video signal, comparison of multiple video streams
on a single display, and picture
-
in
-
picture display. An exemption is necessary to reduce the
impact of Section 1201 on these protected forms of speech.

Security research is essential to the well
-
being of those who are subject to digital technology.
The permanent and temporary exemptions existing for security research are unnecessarily
limited and harm the public by failing to allow important, noninfringin
g security research. In
particular, the limitation of the temporary exemption to
“
a device or machine that is primarily
designed for use by individual consumers”
fails to
alleviate the adverse impact of the ban on
circumvention on
research into a variety o
f devices on Green’s research agenda

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